National Credit Regulator v Melmoth Masiza Finance CC t/a Masiza Finance (NCT/127143/2019/57(1)) [2019] ZANCT 118 (7 June 2019)

IN

THE NATIONAL CONSUMER TRIBUNAL

HELD

IN CENTURION

Case Number: NCT/127143/2019/57(1)

In the matter between:

NATIONAL CREDIT

REGULATOR APPLICANT

and

MELMOTH MASIZA FINANCE CC T/A MASIZA

FINANCE RESPONDENT

Coram:

P A BECK – Presiding Member

CONDONATION RULING

JUDGMENT AND REASONS

INTRODUCTION

1. The Applicant is the National Credit Regulator, (the NCR) or (the "Applicant") a juristic person established by Section 12 of the National Credit Act, 34 of 2005 (the Act).

2. The Respondent is Melmoth Masiza Finance CC Va Masiza Finance a registered credit provider whose registration number is NCRCP 381 (the "Respondent.")

3. The Applicant and the Respondent will be referred to as they appear in the main application.

THE

APPLICATION

4. This is an application in which the Respondent seeks condonation for the late filing of the Respondent's answering affidavit in terms of Rule 34(1) of the Act.

5. The Applicant is not opposing the application for condonation and the application is accordingly considered on an unopposed basis.

BACKGROUND

6. On 27 February 2019, the Applicant lodged an application in terms of Form 32 against the Respondent (the principal matter). The Applicant attached to this form a founding affidavit, together with an investigation report.

7. On 1 March 2019, the Registrar of the Tribunal signed a Notice of filing of the Application (the Notice.) The Notice stated that the Respondent may oppose the application by serving an answering affidavit within 15 business days of the date of the Notice. The Respondent was therefore bound by the notice to serve its answering affidavit, in the main matter, by 25 March 2019.

8. On 6 May 2019, the Respondent filed the Respondent's answering affidavit on the Tribunal. In terms of Rule 13(2) read with Rule 2(1) the service was effected outside of the prescribed time frames.

9. An application for condonation for the late filing of the Respondent's answering affidavit was filed with the Tribunal on 6 May

2019.

ISSUE TO BE

DECIDED

10. The issue I am required to decide in this condonation application is whether or not the Respondent's application to condone the late filing of the Respondent's answering affidavit should be granted or not.

BASES FOR THE LATE FILING OF THE RESPONDENT'S ANSWERING AFFIDAVIT

11. The Respondent made the following main submissions in support of the Respondent's application for condonation:

11.1 The Application of the Applicant was voluminous, consisting of 321 pages;

11.2 In order to properly answer the Application, the Respondent engaged the services of an experienced legal team who specialised in credit law; and who had extensive experience in dealing with matters before the Tribunal;

11.3 The Respondent required additional time to compile the supporting documentation requested from the Respondent by the Respondent's legal representative;

11.4 The main application is of a serious nature and the Applicant is seeking amongst other orders the de-registration of the Respondent;

11.5 The sole member of the Respondent is 67 years of age; and has difficulty in engaging in English on technical matters such as these;

11.6 There is no prejudice to the Applicant in granting the Respondent condonation to serve and file the Respondent's answering affidavit outside of the time periods allowed by the Rules; and

11.7 By contrast, the Respondent will suffer tremendous material prejudice if the Respondent's answering affidavit were to be excluded on the grounds of lateness because the Respondent would be deprived of the opportunity to answer to any of the allegations raised by the Applicant.

THE RESPONDENT

12. The Applicant did not oppose the Respondent's application for condonation.

LEGAL PRINCIPLES

13. It is convenient to set out the relevant statutory and regulatory provisions as well as the case law governing the condonation

application.

14. Rule 34 (1) (a) of the Rules[1] provides that a "party may apply to the Tribunal in Form Tl r.34 for an order to condone the late filing of a document or

application." Rule 34 (2) states that the Tribunal may grant the order on good cause shown.

15. Rules 13 (1) of the Rules provide that:

"(1) Any person required by these Rules to be notified of an application or referral to the Tribunal may oppose the application or referral by serving an answering affidavit on:

(a) the Applicant; and

(b) every other person on whom the application was served."

16. Rule 14(1) of the Rules provides that:

"(1) The Applicant may within 10 business days of being served with an answering affidavit, lodge a replying affidavit to any new issues raised in the answering affidavit, other than a point of law."

17. Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. It requires the exercise of discretion on an objective conspectus of all the facts. Factors that are relevant include, but are not limited to, the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success.[2]

18. In Mefane v Santam Insurance Company Limited[3] it was held that:

"In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degrees of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are inter­ related; they are not individually decisive, save of course that if there are no prospects

of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. And the Respondent's interests in finality must not be overlooked."

19. Similarly in Mbutuma v Xhosa Development Corporation Ltd[4J the court held that:

"The main issue in these proceedings is whether this Court should grant the indulgence sought, notwithstanding the inordinate delay in approaching the court for condonation. The Court has a very wide discretion in these matters. Condonation may be granted under Rule 13 of the Rules of this Court if the applicant has satisfied the Court that sufficient cause has been established for granting him relief from the operation of the Rules; and, in deciding whether sufficient cause has been shown, the Court will consider all the relevant facts and circumstances of the particular case, such as the degree of non­ compliance with the Rules, for example the length of the delay, the explanation therefor, .the importance of the case, the prospects of success, the respondent's interests in the finality of his judgment and the avoidance of unnecessary delay in the administration of justice..."

20. From these two judgments it can be seen that not only must the Tribunal act fairly in arriving at a decision to grant or not to grant condonation, it must also consider a number of factors, including the degree of lateness of the application; the reasons

therefore; the prospects for success should the matter be heard; and the importance of the case. These factors need to be considered in conjunction and not in isolation.

CONSIDERATION OF

THE MERITS

21. I now turn to the merits of the condonation application. In considering the application for condonation I have a discretion which must be exercised judiciously, when deciding whether it is in the interests of justice to condone the late filing of the Respondent's answering affidavit. A party seeking condonation must show good cause entitling it to the Tribunal's indulgence.

Lateness

22. According to the Rules of the Tribunal the Respondent had to file the Respondent's answering affidavit on or before 16h00 on 25 March 2019. The submissions of the parties show that the Respondent's answering affidavit was filed on the Applicant on 6 May 2019 and was filed on the Tribunal on 6 May 2019. At this point there was nothing for the Applicant to reply to because the Respondent's answering affidavit was not properly before the Tribunal.

23. The matter was set down for hearing, by the Tribunal, on 10 May 2019. On 6 May 2019, the matter was removed from the hearing roll by the Tribunal.

24. I am persuaded, on the information presented to me, that the Respondent's delay in not timeously filing the Respondent's answering

affidavit was not caused due to any negligence, tardiness or otherwise on the part of by the Respondent. The degree of lateness is in my view further not excessive.

Prejudice

25. I have taken into account that the Applicant has not opposed the Application for condonation. In my view, the Respondent will suffer prejudice if it is denied the opportunity to reply fully to the submissions of the Applicant. There is no prejudice to the Applicant in granting the application for condonation for the filing of the Respondent's answering affidavit.

Prospects of success and importance of the main matter

26. The Applicant appears to have prospects of success in the main application. The Respondent has admitted only specific contraventions

but raised several defences to the main application; amongst others; that it denies that it charged 5,5% interest per month; it denies that the "splitting of loans is in contravention of the Act and Regulations; and submits that if more than one credit agreement is concluded with one consumer the Respondent is entitled to charge the prescribed fees in respect of each single and consecutive credit agreement.

27. Moreover, this matter is clearly of importance to both parties.

CONCLUSION

28. For these reasons I am persuaded that the Respondent has shown good cause and that it is in the interests of justice that the condonation application be granted to enable the parties to fully ventilate their respective cases before the Tribunal.

ORDER

29. Accordingly, the Tribunal makes the following order:

29.1 The late filing of the Respondent’s answering affidavit is condoned;

29.2 The Applicant must file its replying affidavit within 10 days of the issuing of this judgment on the Applicant and file same on the Tribunal; and

29.3 There is no order as to costs.

Authorised for issue by National Consumer Tribunal

Dated at Centurion on this 7th day of June 2019.

{SIGNED}

PA

BECK

PRESIDING

MEMBER

[1] Regulations for Matters Relating to the Functions of the Tribunal and Rules for the Conduct of matters before the National Consumer

Tribunal, 2007

[2] Van Wyk v Unitas Hospital and Others 2008(4) BCLR 442 (CC) at para 20 as applied in Camagu v Lupondwana Case No 328/2008 HC Bisho.

[3] 1962 (4) SA 531 (A) at 532C-E.